Don’t make these mistakes with the 5 Day Notice

The five day notice for non-payment of rent (by the way, it is 10 days in Evanston, thank you very much) – it’s that “simple” little notice that is the beginning of many eviction cases. And boy can it mess up an Illinois eviction lawsuit if it is done wrong! Section 9-209 of the Illinois Forcible Entry and Detainer Act governs the “demand for rent” that must be provided in an action for possession. Most versions of the 5 day notice form that float around are pretty simple. However, many landlords and even some of their agents (who should know better) mess up the form with regularity. And, if the notice is wrong, the eviction case is unlikely to succeed.

Here at Reda | Ciprian | Magnone, LLC, we charge landlords for help with the preparation of termination notices. Many landlords bristle at paying for the preparation of such a “simple” little form. They either don’t want to pay for that service or believe that they can prepare the notice properly themselves. Many can and do. Unfortunately, many can’t. While it is true that the form is simple, the law is technical. Much of our business in the world of notice drafting comes after the landlord brings us a botched first attempt at a five day notice. So, here are four of the more common mistakes landlords commit with the five day notice:

1. Wrong Name

What’s in a name? For an eviction case, pretty much everything. Landlords need to know who their tenants are. Believe it or not, this simple threshold question stumps lots of landlords. The right person (or people) needs to be named in the 5 day notice. We know Mary is a tenant, but is her longtime guest/roommate Jill also a tenant? That depends on the facts. Is there a written lease? Who signed it? Who has made payments? Was it just Mary or did Jill make a payment? The five day notice should name any and all people who are parties to a lease (whether oral or written). What about that lease with Jim? Jim’s friend Sarah moved in during the term of the lease and Jim moved out at the end of the lease term leaving Sarah in the property and there was never a new lease. Generally, the people that have an obligation to pay need to be named (and, later sued in the forcible entry and detainer case). If a party to a lease is left off of the five day notice or not named in the subsequent eviction case, the Sheriff will probably not evict that person or worse yet, if a person left out of an eviction lawsuit does get evicted, that person might have a wrongful eviction case against the landlord!

2. Wrong Address

The court (and the tenant being notified, I suppose) needs to know exactly what property we are talking about evicting the tenant from! In Illinois, the five day notice must properly state the address of the leased premises. The normal test from Illinois case law of the certainty of the description of the premises address is whether an officer executing a summons would be able to locate the premises from the description. Many landlords leave off a unit number from the address. Others leave out the directional designation (ie. North South East West). Still others fail to state whether the address is a road, street, or boulevard. Worse yet, sometimes a property is known by more than one common address! In my own experience, the Cook County Sheriff will not evict if there is any question about an address. Completeness and correctness in the full and complete address is essential to successfully evicting a tenant.

3. Wrong Amount

Here’s a place where landlords routinely get it wrong. The five day notice can only include rent that is actually past due and it cannot include amounts due for things other than rent. If rent is not deemed late until after the fifth of the month, the landlord needs to wait until the sixth to serve the five day notice. If the landlord charges separately for utilities (ie. monthly utility fee), the landlord cannot add that to the amount due on the notice? Did the tenant do damage? That’s all well and good, but it can’t be put in a five day notice. Do the lease provide for a late fee? If it is not deemed additional rent, it cannot be included in the five day notice. Did the tenant fail to pay the security deposit (you didn’t really give the tenant keys and let them take possession without getting the fist month’s rent and security deposit first, did you?), the security deposit can’t be put in the five day notice. Rent, and only when it is late. That’s it. Nothing more.

4. Wrong Time

As the name suggests, tenants are entitled to a certain amount of time to pay the past-due rent. Five days. But how are those days counted? Are weekends included? What about holidays? Landlords can get themselves get the amount of time wrong a lot. Some notices will say the lease is “terminated immediately” while others will insert an actual date that is wrong. The rule is that the tenant gets five days, but if the final day of the five day period is a Saturday, Sunday, or Court Holiday, then the tenant gets until the end of the next full business day. Here’s another tip: check that lease because many leases change the time limit for the notice to something other than five days (in Chicago leases governed by the Residential Landlord Tenant Ordinance, the period cannot be less than five days but some leases change the time to ten or more days!) Filing a case too soon will generally result in a dismissal of the eviction lawsuit in Cook County.

We provide sample versions of a five (and Evanston ten) day notice for nonpayment of rent on this website. Some do-it-yourselfers might be able to take that information and prepare a notice that “works” (we advise that before using any form on this site or anywhere else that you contact an attorney for advice), but many landlords need some help and we are here to help. If you think you might like some assistance with the preparation of a proper Illinois five day notice for late payment of rent, please feel free to contact us to see if we are a match for an engagement.

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